To be an authorized Partner of Metagauss, Inc. (“Company” or “we” or “our”), you (“Partner” or “Affiliate” or “Affiliate Partner”) agree to abide by the terms and conditions contained in this agreement. Please read this agreement carefully before registering and signing on as a Partner. By signing up for the Metagauss Affiliate Partner Program, you are agreeing to accept this Partner Program Agreement and its terms and conditions. If you sign up on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
This Partner Program Agreement (Agreement”) is subject to change at any time, without prior notice. You are responsible for reviewing this Agreement on a regular basis. Any changes that are made to this Agreement will not apply retroactively and will not apply to disputes or events occurring before the change is published.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. Promotional Materials.
In connection with any marketing efforts you choose to make for our products, please ensure that all promotional materials adhere to the following guidelines:
Product Reviews: In the event that you do a product review of any of our products, you should make sure that you disclose upfront that you receive a percentage of each sale made. In addition, all endorsements must reflect the honest opinions or experiences of the endorser. Any disclosures must be clear and conspicuous and not hidden.
Furthermore, such disclosures must be made clearly, frequently and conspicuously. Such disclosures ensure that readers can formulate an informed opinion about the information you provide by understanding the possible influence your material connection with our company might have on your endorsement of our products.
2. Partner Tracking and Commissions.
a. All sales are tracked using visitor IP and/or cookies. While this is the best method available, it is not perfect. We can only guarantee that sales will be tracked if the user’s IP does not change or their cookies are not cleared. This is also applied to any renewals, which are tracked independently of the initial purchase. Partner will include all Site integration tags, tracking pixels and other tracking code (“Code”) that we request, included any Code incorporated into the Links and/or Creatives. Partner may not alter the Code under any circumstances. If you alter, remove or disable any Code, you will not be paid for any net revenue that were or could have been attributed to that Code. In the event of a discrepancy in reporting, the tracking statistics and reports of Company shall control.
b. The first Partner to refer a visitor gets credit for the sale. Multiple Partners will not be paid for the same sale. Partners agree that in the event of a dispute regarding credit or payment, the sole determination of Company shall be final and binding. If a payment is refunded, then the commission for this payment will be removed from your account.
c. Only intentional clicks are allowed in the system. Forcing visitors to click a link, or using fake tracking pixels (also known as “cookie stuffing”), or any other means to register unsuspecting visitors in the system is strictly prohibited. Accounts using such methods will be terminated without warning and all revenues will be forfeited. This includes, but is not limited to, the use of: Auto-Hit or Auto-Surf programs, displaying Partner tracking URL within an iframe or image src, automatic pop-ups or automatic redirects to Partner URL’s without action by the visitor, or any other method meant to automatically track a visitor in the Partner system without an intentional click from an interested buyer. If Company believes that Partner has fraudulently added registrations by non-approved methods (as solely determined by Company in its judgment), Partner agrees the payout for all such fraudulent leads will be forfeited.
d. Visitors referred by Partners are tracked for a maximum of 182 days. Visitors who are referred and make a purchase 182 days after clicking a Partner’s link will not be tracked, and a sale will not be awarded or compensated.
a. Payments are sent out automatically to Partners with a balance of $100.00 and above, and at least 3 referral sales recorded. No payments will be due or payable until an Partner has earned at least U.S. $100.00 hereunder and secured 3 referral sales. Payments are only made through PayPal. Therefore, you must have a valid PayPal email address assigned to your account to receive any payment.
b. Referral commission accrued below 100$ is property of company and Partner cannot request its withdrawal. Referral commission is considered earned only once it goes above $100 limit.
c. Minimum payout shall be 100$.
d. Company shall pay Partner the agreed upon percentage of Net Revenue from customers. Company shall have the right at any time in its sole discretion to alter the percentage of Net Revenue paid to Partners upon the provision of ten days’ prior notice. Net Revenue means the gross revenues actually received by Company due to Partner’s actions less taxes, refunds, rebates and any discounts given. Payment shall be made within thirty (30) days after the first day of the month, following the month in which the Customer paid Company.
e. If you disagree with any compensation paid in connection with any month, you agree to notify Company witein 30 days of payment for such month. Otherwise, you agree that any and all claims for underpayment for such month shall be waived. YOU AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST COMMENCE WITHIN SIX (6) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
4. Account Termination.
a. If we suspect that you are engaged in fraud of any kind, your account may be terminated without notice. Partners who have had their accounts terminated are not eligible to become Partners thereafter. Accounts which refer customers using misleading or falsified information will be terminated. Lying to a potential customer in order to persuade them to purchase our products is strictly forbidden. Using illegal means of promotion, including (but not limited to) eMail SPAM is strictly prohibited. Accounts found to be promoting our products using methods that break the CAN-SPAM Act of 2003 will be immediately terminated and removed from the system. Accrued commission balance of terminated accounts will be reset to USD 0 and will not eligible for future payout.
b. Only one person may use an account, and each person may only create one account for themselves. Creating multiple accounts is not allowed. Partners with multiple accounts will be terminated.
c. Since Partner accounts are activated automatically, company reserves the right in its sole discretion, and without any prior notice, to terminate your access to the Service for any or no reason, including your breach of this Agreement or a violation of the rights of another or the law.
Partner warrants and covenants on an ongoing basis that its web site(s) and marketing practices:
1. Do not violate any law or regulation governing (i) false or deceptive advertising, (ii) sweepstakes, or (iii) gambling;
2. Do not contain any trade disparagement or libelous, defamatory or infringing content; and (i) do not contain any machine-readable code that could be unintentionally downloaded onto a recipient’s computer (such as a worm, virus, Trojan Horse or other self-executing program) and damage or takeover recipient’s computer;
3. Do not offer incentives to users to click on ads or complete offers that award them cash, points, prizes or automatically enter them into contests, drawings or sweepstakes;
4. Will only be marketed to people who are eighteen (18) or older that are eligible to use the Company’s product.
5. Comply with all local, state and federal laws regarding email marketing (CAN-SPAM ACT, effective January 1, 2004). If Company notifies Partner of its receipt of any complaint regarding Partner’s email practices, or alleged violations of email practices, Partner must respond to Company within forty-eight (48) hours of such notification and provide source information, including, but not limited to: (i) time, (ii) date, (iii), IP address, (iv) opt-in source, and (v) content of email message.
6. As a condition to your participation in the Partner Program, you agree that while you are an Partner, you will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, whether those laws, etc. are now in effect or later come into effect during the time you are an Partner. Without limiting the foregoing obligation, you agree that as a condition of your participation in the Program you will comply with all applicable laws (national, federal, state or otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws.
7. Partner has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.
8. Partner’s websites do not contain any materials that are:
i. Obscene, or pornographic;
ii. Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
iii. Graphically violent; or
iv. Solicitous of any unlawful behavior
9. Partner has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Partner’s websites. Nothing on Partner’s websites infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Partner have any reason to believe that any person or entity will bring or threaten such a claim in the future.
10. Partner will not use the Promotional Materials in any manner other than those set forth above.
11. Partner will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
12. Partner will not publish or otherwise distribute any advertising materials for Partner’s websites that reference Company or Company’s website unless Company gives prior written consent to the distribution of such materials. Partner will not use Company’s name (or any name that is confusingly similar to Company’s name) for any purpose on its websites, in its promotional materials, or in any other context except to promote Company’s website as specified in this Agreement. Partner will not register any domain name that incorporates Company’s name, or that is confusingly similar to Company’s name.
13. Partner shall not during the Term compete directly or indirectly with Company in the sale of third party products or merchandise without the prior written consent of Company, provided that it shall not be a violation of this section for Partner to sell Partner-branded products or merchandise or products or merchandise previously marketed by Partner.
14. Partners shall not bid on search terms that include Metagauss trademarks or variations thereof when promoting their Partner links on search engines including, but not limited to, Google, Yahoo and Bing. This includes any search term including the words and phrases, or variations of, “Metagauss,” “RegistrationMagic,” “ProfileGrid,” and “EventPrime.”
6. FTC Compliance.
The Federal Trade Commission requires that Partners disclose to their readers when they endorse a product and have a “material connection” to the seller of that product. These rules apply to any online review, article or endorsement that includes our Partner link and encourages visitors to purchase our product. Disclosures are not required for links that are clearly advertisements (such as banner ads in your blog’s sidebar). By participating in our Partner Program, all Partners must agree to comply with the Federal Trade Commission’s 16 CFR § 255.5 (http://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf), and review and follow the suggestions outlined in their Revised Endorsement Guides FAQ (http://business.ftc.gov/documents/bus71-ftcs-revised-endorsement-guideswhat-people-are-asking). Every time you link to Metagauss.com in an article using your Partner link, you must disclose the nature of your relationship with our company. Furthermore, such disclosures must be made clearly, frequently and conspicuously. Such disclosures ensure that readers can formulate an informed opinion about the information you provide by understanding the possible influence your material connection with our company might have on your endorsement of our products. Those Partners who do not comply with the FTC guidelines will be subject to account termination and commission reversal.
a. Appropriate Disclosure
1. Linking In Articles: When using our Partner link in an article, you must display a clear disclosure about the nature of your Partner links and the material connection you have with our company. These disclosures must appear on the same page where the links appear, and they must be clear, conspicuous, and require no additional user interaction to read (such as clicking a link, scrolling or hovering over an element). According to the FTC: “Putting disclosures in obscure places – for example, buried on an ABOUT US or GENERAL INFO page, behind a poorly labeled hyperlink or in a terms of service agreement – isn’t good enough. The average person who visits your site must be able to notice your disclosure, read it and understand it.” All disclosures should appear in full, either before or in close proximity to the Partner link itself.
Example Article Disclosure: “Disclosure: Some of the links in this post are “Partner links.” This means if you click on the link and purchase the item, I will receive a Partner commission.”
2. Linking On Social Networks : When using our Partner links on social networks, you must also display a clear disclosure about the nature of the links and the material connection you have with our company. In the form of social media posts, these disclosures must be part of the post that contains the Partner link.
Example Facebook/Google+ Disclosure: “Ad: Check out our review of RegistrationMagic, and why we think it’s the best user registration plugin around.”
Example Twitter Disclosure: “Metagauss has the best plugins in the business! #ad”
Partner shall indemnify Company and hold harmless and defend Company from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Partner’s warranties set forth herein. Partner shall also indemnify, defend and hold harmless Company for any damage, loss or other cost arising out of the use or misuse by Partner of the Promotional Materials.
Any information that Partner is exposed to by virtue of its relationship with Company under this Agreement, which information is not available to the general public, shall be considered to be “Confidential Company Information.” Partner may not disclose any Confidential Company Information to any person or entity, except where compelled by law, unless Partner obtains prior written consent for such disclosure from Company.
Company shall not be responsible for any taxes owed by Partner arising out of Partner’s relationship with Company as set forth in this Agreement. Company shall not withhold any taxes from the Commissions paid to Partner.
10. Limitation of Liability.
Company shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether Company was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement. COMPANY’S LIABILITY, AND THE LIABILITY OF OUR SUPPLIERS AND PARTNERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE, SHALL NOT EXCEED THE TOTAL SUM OF $100.00. THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE CONTRACT BETWEEN US AND YOU. Some states do not allow the limitation of liability, so the foregoing limitation may not always apply.
For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.
This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The individuals signing this Agreement represent and warrant that they are authorized to bind and do so bind the party on behalf of which they are executing this Agreement.
If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
14. Applicable Law, Arbitration and Class Action Waiver.
a. This Agreement is entered into in the Province of Ontario, Canada. This Agreement shall be governed by and construed under the laws of the Province of Ontario, excluding that body of law applicable to conflicts of law.
b. Any claim or controversy arising out of or relating to the Agreement or to any acts or omissions for which you may contend we are liable, including but not limited to any claim or controversy (“Dispute”), shall be finally, and exclusively, settled by arbitration in Toronto, in the province of Ontario, from which arbitration there shall be no appeal. The arbitration shall be held before one arbitrator under the Commercial Arbitration rules of the Canadian Arbitration Association (“CAA”) in force at that time. The arbitrator shall be selected pursuant to the CAA rules. The arbitrator shall apply the substantive law of the Province of Ontario, except that the interpretation and enforcement of this arbitration provision shall be governed by the Commercial Arbitration Act. To begin the arbitration process, a party must make a written demand therefore. Each part shall bear its own costs and attorneys’ fees. Any judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction in Ontario. The arbitrator shall not have the power to award damages in connection with any Dispute in excess of actual compensatory damages and shall not multiply actual damages or award consequential, punitive or exemplary damages, and each party irrevocably waives any claim thereto. The agreement to arbitrate shall not be construed as an agreement to the joinder or consolidation of arbitration under this Agreement with arbitration of disputes or claims of any non-party, regardless of the nature of the issues or disputes involved. THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING ARBITRATION. YOU THUS GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. YOU ACKNOWLEDGE AND AGREE THAT YOU AND METAGAUSS ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and we otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY.
c. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, except that either party may assign this Agreement in its entirety to any purchaser of all or any substantial portion of its business or assets or to any subsidiary or other Partner without the prior approval of the other party, provided that the assignee specifically assumes in writing all of the obligations of the assignor. The parties agree that a merger, consolidation or acquisition of a controlling interest in a party shall be deemed an assignment of this Agreement for purposes of this provision.
16. Entire Agreement.
This Agreement constitutes the entire agreement between Company and Partner, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. This Agreement may be amended or modified only in writing agreed to and signed by authorized representatives of both parties.